September 20, 2012

D.C. Circuit Questions Secrecy Over Drones in Records Dispute

The U.S. Justice Department today in a federal appeals court in Washington continued to press the government's claim that it has not officially acknowledged any CIA role in the use of drones to target and kill suspected terrorists abroad.

A top Justice lawyer, Stuart Delery, the acting head of the department's Civil Division, told the U.S. Court of Appeals for the D.C. Circuit that it should uphold the dismissal of a suit that seeks records about drones and targeted killing of alleged terrorists. A trial judge in Washington earlier ruled against the American Civil Liberties Union, which sued to access records about drones. The CIA has refused to confirm or deny the existence of any documents about drones.

Delery today disputed the notion that statements about drones by President Barack Obama and former CIA Director Leon Panetta amount to anything more than "ambiguous" remarks about the effort to fight terrorism. Statements from the president and Panetta, now the Defense Department secretary, are not "official acknowledgement" that the CIA has participated in drone strikes, Delery argued.

Judge Merrick Garland, who heard the case with judges David Tatel and Thomas Griffith, appeared the most skeptical of the government's position. Garland questioned Delery about whether disclosure of information about drones—for instance, any collateral damage assessment—would harm the national security. Likening the CIA to an "emperor," Garland said DOJ wants the appeals court to find the agency has clothes "even when the emperor's bosses say it doesn't."

The hearing, which drew a crowd of more than 80 people, lasted more than an hour--well beyond the allotted 30 minutes. Senior DOJ officials, including Beth Brinkmann, a top Civil Division appellate lawyer, attended the hearing.

The ACLU's Jameel Jaffer, who argued today in the appeals court, told the panel that it shouldn't assess public statements from Panetta and Obama in a vacuum. Jaffer, the deputy legal director of the civil rights group, argued there's nothing ambiguous in remarks that Obama and Panetta have made about drones and targeted killing.

"The notion that the CIA's targeted killing program is a secret is nothing short of absurd," Jaffer said in a statement the ACLU published online before the start of the hearing. "For more than two years, senior officials have been making claims about the program both on the record and off."

Tatel questioned whether a series of statements, taken together, can constitute "official acknowledgement" about a government program if any one of the remarks, standing alone, does not reach that threshold.

Delery insisted in court that the government has provided sufficient information justifying the use of lethal force in combatting terror activity. He noted prominent speeches this year that John Brennan, the White House counterterrorism advisor, and Attorney General Eric Holder Jr. delivered about the legal framework supporting the use of aerial strikes against suspected terrorists.

Griffith spent most of his time today questioning the leaks aspect of the case. The ACLU trumpets in its court papers the numerous—and anonymous—senior administration officials who have spoken about drones in interviews with reporters. Griffith characterized the leaks as "widespread and strategic."

Obama in June dismissed criticism that administration officials were selectively leaking classified information to the press. "The notion that the White House would purposely release classified national-security information is offensive," the president told reporters.

Delery urged the court to allow generalized, public discussion about the use of drones to continue without delving into any specific involvement of the CIA or another agency.

He argued that a ruling in favor of the ACLU—in which the court determines, for instance, that the government has officially confirmed the CIA's role in drone attacks—could cause officials to shy away from any further participation in that dialogue.

The D.C. Circuit panel didn't immediately rule today. The panel could decide to send the dispute back to Washington's federal trial court, where DOJ would be in the position to argue that specific exemptions in the Freedom of Information Act should block the public disclosure of certain documents.